"Last week a three judge panel of the Ninth Circuit Court of Appeals looked at five immigration cases,
turned to the Department of Homeland Security, and effectively said,
"Really!? Are you really going to deport these people? Or are you going
to use your common sense and focus your limited law enforcement
resources on dangerous criminals and national security risks?" The
court went on to say, in essence, "How about this, go and think about
what we've asked and let us know what you've decided by March 19. In
the meantime we're going to focus our judicial resources on more important cases."
The court's orders were the result of a memorandum issued last year by John Morton,
Director of Immigration and Customs Enforcement, in which he announced
that the agency would employ "prosecutorial discretion" in its
enforcement of the immigration law. Morton ordered ICE agents and
prosecutors to focus on the removal of illegal immigrants who pose a
threat to our communities -- dangerous criminals and national security
risks. Each case considered by Ninth Circuit concerned an immigrant who
had been in the U.S. for a long time, had strong family ties, and had
no criminal record. Unfortunately, such sympathetic factors are usually
meaningless to the immigration law which blindly insists on deportation
without regard to fairness, justice, or common sense.
I'll leave it to others to decide whether or not the Ninth Circuit
panel overstepped its authority. After all, as Judge O'Scannlain
pointed out in his dissent, courts "have only the slimmest authority
even to review the exercise of prosecutorial discretion." And while the
Morton memo is a common sense approach to enforcing a badly broken
immigration statute, it is not the law of the land.
So what was the court up to?
Every day in this country courts are forced to turn their backs on
deserving immigrants and American citizens alike because of the
dysfunctional immigration law. In courtrooms all across America judges
sit helplessly by, their hands legally tied, as the twisted immigration
law wreaks havoc on American families, stymies American business, fails
to protect people fleeing persecution, and stomps on the due process
rights of immigrants and U.S. citizens. Its mean spirited provisions
tear husbands from wives, parents from children and brothers from
sisters. Like some sinister beast in a horror movie, the immigration
law creeps into peoples' lives and destroys them without so much as a
second thought about the human suffering it leaves behind.
It's tempting to brush aside the Ninth Circuit judges' orders as
improper judicial activism. But that misses the point. Even the U.S.
Supreme Court appears to have weighed in on the broken immigration law
through its decisions in cases like Padilla v. Kentucky and Carachuri-Rosendo v. Holder,
which derive from the confusing, contradictory, and counterintuitive
statute, and signal a major shift in the Supreme Court's jurisprudence
toward greater protection of immigrants' rights. Nor is the Supreme
Court's concern limited to the law. It has also taken the government to
task for its haphazard and illogical reading of it. Late last year in
Judulang v. Holder
a unanimous Supreme Court called the government's interpretation of a
legal provision "arbitrary and capricious" and "unmoored from the
purposes and concerns of the immigration laws."
Another, more plausible, explanation for these decisions is that the
nation's courts, including perhaps even the Supreme Court, are
effectively throwing their hands up and imploring Congress to get to the
hard work of fashioning a law that will provide America with a safe,
orderly and fair immigration policy -- one that protects American
families and businesses and restores civil liberties." - David Leopold, Feb. 13, 2012.